Fourth Department Declines to Apply “Storm in Progress” Doctrine
In Mosley v State of New York, 2017 NY Slip Op 03653 (May 5, 2017), the plaintiff sought damages for injuries she allegedly sustained when she slipped and fell on ice and snow on a walkway leading to the entrance to the Orleans Correctional Facility during visiting hours. The record established that the walkway was covered in snow, and the defendants asserted the storm in progress doctrine. The record further established that it had been snowing up until two hours before the plaintiff fell, and that the defendant had cleared the snow from the walkway two hours before the fall.
Nevertheless, the Fourth Department upheld the Court of Claims’ finding that the defendant was 75% liable for the injury, and held that the storm in progress doctrine could not be applied. The Court found that even though the defendant had cleared snow from the walkway after it had stopped snowing, “it was just as likely that the wind blew snow from the adjacent field onto the sidewalk,” and “wind would blow snow onto the sidewalk ‘[a]ll the time’ and was in the nature of a recurring dangerous condition.” The defendant had therefore failed to remedy the dangerous condition by removing the snow.
Fourth Department Decides Coke Oven Batteries Not a “Product”
In Terwilliger v Honeywell, 2017 NY Slip Op 03629 (May 5, 2017), a products liability and negligence action, the plaintiff sought damages for injuries sustained as a result of his exposure to asbestos and coke oven emissions while employed at the Bethlehem Steel plant (Bethlehem) in Lackawanna, New York. The plaintiff alleged a manufacturing defect in the coke oven batteries manufactured by the defendant.
Honeywell moved for summary judgment seeking dismissal of the complaint, contending that the coke oven batteries were not products for purposes of products liability theories and that the defendant’s contract was one predominantly for services, not the sale of a product placed into the stream of commerce. The trial level court disagreed and denied the motion for summary judgment.
The Fourth Department reversed the decision of the trial court, and held that “service predominated the transaction herein and that it was a contract for the rendition of services, i.e., a work, labor and materials contract, rather than a contract for the sale of a product.”
The Court’s reasoning was that the coke oven batteries are installed as part of the construction of the “great complex of masonry structures” at Bethlehem, permanently affixed to the real property. The Court noted the 18-month long installation process and 1,460,000 hours of labor it took to complete the process over six phases. The intensity of the construction required made the service component of the contract more integral than simply the purchase of the coke oven battery.
Fourth Department Finds Issue of Fact in Labor Law Case
In Piche v Synergy Tooling Sys., Inc., 2017 NY Slip Op 03673 (May 5, 2017), the plaintiff sought damages for injuries he sustained when he fell while wearing stilts in order to install ceiling tile. The plaintiff fell when he stepped on a flexible electrical wire conduit that was on the floor. The defendant moved for partial summary judgment dismissing the Labor Law § 240 (1) claim against it, and plaintiff cross-moved for partial summary judgment on liability on that claim against the defendant. The trial court denied plaintiff’s motion and granted defendant’s motion.
In modifying the order, the Fourth Department denied the defendant’s summary judgment motion noting that the plaintiff explained in his deposition and in his affidavit that his work was obstructed by electrical wiring and conduit in the ceiling that had not been properly secured, thereby leaving limited space in which to install the tile, which measured two feet by four feet. With his arms fully extended overhead while attempting to move and secure the electrical wiring and conduit, he lost his balance and was forced to step backwards, at which point his right stilt came into contact with the conduit and he fell. The Court held that this raised an issue of fact as to whether his “injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant height differential” while he was attempting to secure the electrical wiring and conduit in the ceiling in order to install the ceiling and were not solely caused by the presence of the conduit on the floor.
Third Department Applies “Storm in Progress” Doctrine
Griguts v Alpin Haus Ski Shop, Inc., 2017 NY Slip Op 03820 (May 11, 2017), the plaintiff brought suit seeking damages for injuries she sustained when she slipped and fell while walking on the sidewalk in a strip mall owned by defendant Alpin Haus Ski Shop, Inc.
The defendant asserted that there was a storm in progress and the Court found that it was snowing on the morning in question and that there was an accumulation of snow on the sidewalk where the plaintiff fell. The plaintiff then contended that there was black ice on the sidewalk, and the plaintiff’s expert witness opined that untreated patches of black ice observed by another witness were the result of several days of melting and refreezing of “any snow on or near the sidewalk and parking lot” that remained untreated after a snow event that had occurred roughly 12 days earlier. However, the plaintiff produced no evidence identifying any specific conditions on or near the sidewalk that could have caused an accumulation of meltwater on the sidewalk that subsequently froze.
In light of that, the Court held that the plaintiff’s claims that she fell on preexisting ice created by several days of melting and refreezing and that the defendant had actual or constructive notice of the alleged icy condition were speculative. The Court affirmed dismissal of the lawsuit.
Third Department Finds Construction Company Liable Under Labor Law
In Griffin v AVA Realty Ithaca, LLC, 2017 NY Slip Op 03829 (May 11, 2017), the plaintiff was constructing a masonry elevator shaft when the scaffolding he was working on collapsed. The plaintiff brought suit seeking to recover damages for his resulting injuries against the defendant.
Two days prior to the accident, the plaintiff’s project manager directed him to relocate the scaffolding from the bottom of the elevator shaft to the fourth floor, and assisted him in doing so. It was undisputed that the scaffolding’s base plates, which were embedded in ice at the bottom of the shaft, were never reattached to the scaffolding when it was reassembled. While the plaintiff was later working on the scaffolding, it punctured the decking that it was resting upon and collapsed, causing him to fall. The parties agreed that the presence of the scaffolding’s base plates, or an appropriate alternative, would have prevented its collapse. An OSHA citation and notification of penalty identified the absence of the base plates and a “personal fall arrest system or guardrail system” to be violations of OSHA regulations.
The plaintiff therefore established a prima facie showing of liability under Labor Law §240(1), and the burden shifted to the defendant to raise a question of fact. The defendant asserted that it did not supervise or direct plaintiff’s activities at the work site relative to the use of the scaffolding or the safety issues related to its use and construction, and therefore the injury was proximately caused by the plaintiff’s own negligence.
The Third Department found that the defendant failed to meet its statutory and contractual obligations to provide the protection that would have prevented the plaintiff’s accident and resulting injuries. This breach of duty was a direct cause of the failure of the required safety equipment and a proximate cause of the plaintiff’s injuries, even if the plaintiff could also be shown to bear some partial responsibility. As Labor Law §240(1) places “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor,” the Court held that the plaintiff was entitled to partial summary judgment on the issue of liability.
Prepared by Eric W. Marriott, Esq.